Shopping for judges Fletcher aim: Remove, appoint way out of jam

Reprinted from Lexington Herald Leader
FRANKFORT – Last week, the attorney general’s office described as “judge-shopping” the attempts to recuse two Franklin District Court judges from presiding over criminal proceedings against Transportation Secretary Bill Nighbert and Gov. Ernie Fletcher.

As far as the governor is concerned, though, having someone other than Judge William “Guy” Hart Jr. handle the three misdemeanor charges he faces is just one item on a growing judicial-shopping list related to the legal troubles he faces as a result of his BlackBerry Jam hiring scandal.
Fletcher already has been able to appoint two special justices (one of whom later recused himself) to sit on the state Supreme Court when it heard his appeal regarding the effect a blanket pardon has on the proceedings of the special Franklin County grand jury investigating merit system hiring in his administration.

Within the next month, he will have the opportunity to name replacements to fill the remaining terms of Franklin Circuit Judges William L. Graham and Roger Crittenden, both of whom have announced plans to take advantage of the increased pension benefits available to members of the judiciary who retire before July 1.
Judge Graham has presided over the special grand jury’s activities and related legal issues from the outset of what is now a year-long (and counting) investigation.

A couple of open-records cases, one involving the contents of Fletcher’s “Sadie” e-mail account and the other relating to the legal bills amassed by the administration as a result of the investigation, remain pending before Judge Crittenden.
As many as three Supreme Court justices also may opt to improve their pensions by retiring early, thus allowing Fletcher to appoint their temporary replacements.

No doubt, the governor must be heartened by the prospect that a recusal and his ability to make appointments in strategic spots might improve his legal odds. In the long run, though, I’m not sure how much good Fletcher’s shopping list can do him.
For instance, let’s say a substitute for Judge Hart dismisses the indictments against the governor, or a temporary replacement for Judge Graham puts some legal roadblocks in the grand jury’s path.

Either way, you know the attorney general’s office would appeal. But I doubt that prosecutors would be in any rush to get that appeal to a Supreme Court dominated by Fletcher appointees.
Those appointees can only help the governor on appeals that are heard by the end of the year. That’s when his appointees would give way to newly elected justices.

Next year, the court could have as many as five new members, if Fayette Circuit Judge Mary Noble beats Justice John Roach, who was appointed by Fletcher last year. At the very least, there will be four new justices.
Even on an expedited track, it took four months to get from Judge Graham’s initial ruling in the pardon/grand jury case to oral arguments before the Supreme Court. A regular appeal can take several months longer to reach the state’s highest court.

So, the window of opportunity for Fletcher’s shopping list to do him any good is relatively small at the outset. And the inevitable scheduling delays that come into play whenever you start replacing sitting judges will make it smaller still.
Throw in the time allotted for filing and hearing the flurry of motions and responses at each level, including motions for rehearings, and the likelihood that the appeal of any ruling in Fletcher’s favor gets heard by the Supreme Court this year grows ever smaller.

None of that will stop the governor from using his shopping list. If nothing else, this investigation has proven that he is single-minded in pursuing any and all avenues of escape from accountability for his administration’s actions.

But like so many other excuses and ploys he has used, this one, too, may prove futile.